I concur in the reversal of the order dismissing the writs of habeas corpus and certiorari and remanding the relator to the custody of the respondent Beery, but I am not convinced that the principal reason for a reversal assigned in the opinion of Mi*. Justice Ingeaham: should control. I do not think it is established by the affidavits upon which Mr. Corrigan, the city magistrate, acted in issuing his warrant, or that the evidence which was presented to him shows that as matter of fact there was an out and out sale of the securities by Mr. Hegeman to Bead & Co. I am unable to adopt the conclusion that as matter of law the year end transactions of 1904, by which the loans of the Metropolitan Life Insurance Company and the collaterals to secure such loans turned over to Bead & Co., constituted an actual sale.
• Notwithstanding that situation it seems to me that the affidavits and evidence before the city magistrate were not sufficient to establish prima facie the charge of perjury made against Mr. Hegeman. The affidavit annexed to the annual statement for the year ending December 31, 1904, and which was verified by Mr. Hegeman, was made upon information and belief as is alleged in the deposition of Flood, who preferred the charge. The charge is: “ That the said John B. Hegeman, in the County of New York, on the 26th day of January, 1905, in the manner and form aforesaid, feloniously, wilfully, knowingly, falsely and corruptly committed perjury * *
In order to establish a charge of perjury based upon such an affi*74davit, it should be made to appear not only that the affidavit contained a false statement, but that the accused person knew the statement to be false; and on the trial, of an indictment for perjury based upon such an affidavit a conviction could not be had unless the indictment should negative not only the truth of the oath, but also the information and belief. (Lambert v. People, 76 N. Y. 220.)
It is established by affidavits that the transaction was of a similar character to others which had been had for fourteen previous.years and that it was regarded by the officers of the insurance company and by the transferees of the loans and securities as being an actual sale. The essential requirement to constitute the ofíense of perjury is that the inculpated party must knowingly and willfully testify or depose to a falsehood. If he believes the fact to be true, although it may be false, he certainly is not guilty of the crime of perjury; and here, it seems to me, the evidence before the city magistrate, and upon which he should have acted, shows that Mr. Hegeman really believed that by making the transaction with the firm of Bead & Co. there was a bona fide disposition of the loan accounts and of the securities made in accordance with a custom of his company which had obtained for many years, and which was not intended to deceive or misrepresent, but merely to save the company from the importunity of borrowing brokers.
I am of the opinion that the evidence was insufficient to establish prima facie willful and deliberate perjury of Mr. Hegeman. On the contrary, there was enough to show satisfactorily that such willful and deliberate perjury had not been committed. I fully concur in the expression of Mr. Justice Ingbaham in his opinion that, “ From the facts as they appeared before the magistrate, there can be no question but that the relator honestly believed he was making a true statement of the actual condition of the company on the 31st of December, 1904.” Therefore, I concur in a reversal of the order.
Clarke, J., concurred.
Order reversed and relator discharged.